Cahn v. Cahn

626 A.2d 296, 225 Conn. 666, 1993 Conn. LEXIS 164

• Court: Supreme Court of Connecticut
• Decided: June 1, 1993
• Docket: 14523
• Status: Published

Opinions

Santaniello, J.

The question posed by this certified appeal¹ is whether the Appellate Court properly concluded that the mere filing of a motion for protective order by a nondeponent is a sufficient basis to exclude deposition testimony from evidence because the deposition was taken before the motion was heard. During the trial of the dissolution action filed by the plaintiff, Bruce Cahn, the defendant, Florence Cahn, gave notice of the depositions of three nonparty witnesses. Although the plaintiff thereafter filed a motion for protective order, the depositions were taken before the motion was heard and without the plaintiff being in attendance. The defendant now appeals the decision of the Appellate Court upholding the ruling of the trial court excluding the deposition testimony from evidence. We affirm.

The facts relevant to this appeal are as follows.² Beginning in 1982, when the plaintiff had unsuccessfully attempted to obtain a divorce from the defendant in New York, the parties had been involved in contentious domestic litigation both in Connecticut and New York. The defendant had been responsible for delaying a subsequent dissolution action filed in Connecticut by failing to appear in court and by ignoring recommendations from the court. That action was withdrawn in 1987. Cahn v. Cahn, 26 Conn. App. 720, 721-23, 603 A.2d 759 (1992).

In February,.1989, the plaintiff instituted the present action in Connecticut. The parties were notified on May 10, 1990, that the action had been scheduled for trial on July 5 and 6,1990. Cahn v. Cahn, supra, 723. “On July 5, counsel for the defendant appeared without the defendant. The court assigned this case [to another judge] for a pretrial conference to determine if settlement was possible. The pretrial failed and the court instructed both sides to return the following day. The defendant did not appear on the morning of July 6, 1990, and the trial began without her. The defendant telephoned to state that she would be in court by the afternoon of July 6 and that she did not object to the trial continuing without her. The defendant arrived at approximately 3 p.m. that afternoon. The plaintiff was testifying when the defendant arrived in court. The court then allowed the defendant to take the stand out of order because the defendant claimed that she was having medical difficulties that could require surgery and prevent her from being present in court at a future date. The parties were not able to conclude the trial on July 6, 1990.

“After conferring with the parties, the court decided to continue the case until July 24, 1990. The defendant told the court that she had scheduled a medical procedure for July 23, 1990. The court told her that she should reschedule the procedure because the trial ‘took precedence.’ On July 24, the defendant again did not appear. Counsel for the defendant stated that she underwent medical procedures and was advised by her physicians not to travel for seven to ten days. Counsel for the defendant sought a continuance, which was granted, to September [14], 1990. The court ordered the defendant’s counsel to bring a letter from the physician who performed the medical procedures for the defendant stating the reasons why the defendant could not be present in court on July 24 and whether these medical procedures were emergency procedures. On September 14,1990, the defendant again did not appear in court. Counsel for the defendant presented a photocopy of a letter from the defendant’s physician. According to the defendant’s counsel, the physician met with the defendant on September 12,1990, and faxed a letter to the defendant’s counsel. The physician recommended that the defendant should not travel at this time and would need another eight weeks to recuperate. There was no response concerning whether the medical procedure performed on July 23,1990, was an emergency procedure. The court ordered the defendant’s counsel either to produce the treating physician for testimony on this procedure or to bring in a sworn affidavit that the defendant was physically incapable of being in court. The court also allowed the plaintiff to arrange for a physician of his choice to examine the defendant. The court then stated on the record that she felt that the defendant was delaying the resolution of this ease. The court warned the defendant’s counsel that if the defendant failed to show up on November 9,1990, the court would grant the dissolution and make all related financial orders effective on that date.

“On October .22,1990, counsel for the defendant notified the plaintiffs counsel that depositions of three witnesses for the defendant were scheduled on October 31,1990, in New York. On October 25,1990, the plaintiff’s counsel mailed to the clerk’s office a motion for protective order to prevent the deposition of these non-party witnesses. The motion arrived at the clerk’s office and was filed on Monday, October 29,1990. The court noted that because the motions docket was heard on Mondays, there could not have been a hearing until the following Monday at the earliest. The defendant’s counsel called the plaintiff’s counsel on October 31. The defendant’s counsel proceeded with the depositions after the plaintiffs counsel stated that he was not coming to New York. The New York witnesses were the defendant’s treating physician and two psychotherapists.

“The court refused to admit these depositions as a substitute for live testimony. The court found that it would be prejudicial to the plaintiff to admit these depositions because the plaintiff was not present to cross-examine the defendant’s witnesses. The court reasoned that because of the defendant’s scheduling, the plaintiff was prevented from being heard on this motion for a protective order before the depositions took place in New York. The court felt that these depositions should have been scheduled earlier so as to allow the plaintiff to first be heard on his motion for a protective order.” Cahn v. Cahn, supra, 723-26.

“In an appeal following certification, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court.” (Internal quotation marks omitted.) Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 599, 539 A.2d 101 (1988); see also Nardini v. Manson, 207 Conn. 118, 119-20 n.l, 540 A.2d 69 (1988). In upholding the decision of the trial court, the Appellate Court stated that the notice provided by the defendant was not reasonable. Cahn v. Cahn, supra, 728-29. “[A] deposition . . . maybe used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof . . . .” Practice Book § 248. The plaintiff was neither present nor represented by counsel at the depositions. The Appellate Court ruled that the notice provided to the plaintiff was not reasonable because it did not allow the plaintiff sufficient time to argue his motion for protective order. Cahn v. Cahn, supra.

The defendant argues that the notice must merely be sufficient to afford a party an adequate opportunity to attend the deposition and cross-examine the deponent. In her view, there is no requirement that the notice be given far enough in advance of the deposition to afford the other party sufficient time to file a motion for protective order and to have that motion heard.

The defendant contends that the Appellate Court’s ruling is contrary to our holding in Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 470 A.2d 246 (1984). In Pavlinko, the plaintiff, who was also the deponent, was present at the deposition and had never sought a protective order to limit the allowable areas of inquiry at the deposition. He refused, however, to answer certain questions. Id., 143. In holding that a plaintiff cannot use the privilege against self-incrimination to deny a defendant information to which the defendant is entitled, we stated that “[a]ll questions, including those objected to, are to be answered . . . unless the objecting party procures from the court a protective order precluding or limiting the scope or disclosure of discovery.” Id. The issue in Pavlinko was the plaintiff-deponent’s conduct at the deposition.³ The issue before the Appellate Court and this court, however, is whether, in the circumstances of this case, a notice of deposition subsequently ruled unreasonable because the notice did not allow the plaintiff to be heard on his motion for protective order permits a court to exclude the deposition testimony from the trial. The holding of the Appellate Court in this case, therefore, is.not inconsistent with our holding in Pavlinko v. Yale-New Haven Hospital, supra.

The defendant next claims that the plaintiff could have requested a continuance and, because he did not do so, she argues that we should not review this claim.⁴ In Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 535 A.2d 1287 (1988), we declined to review a claim of error where a witness whose identity was not disclosed until after five weeks of trial was . allowed to testify even though the defendant had not been given an opportunity to depose the witness until the night before he was scheduled to testify. Id., 748. The defendant in that case, however, had not requested a continuance and, because the witness testified at trial, the defendant had an opportunity to cross-examine the witness. Id. Although the plaintiff here did not request a continuance of the already protracted trial, he did file a motion for protective order. Filing such a motion was a viable means available to him to prevent the depositions from occurring.

The question remains, however, whether the plaintiff took reasonable steps to expedite a hearing on the motion for protective order. The motion is dated October 25,1990. Rather than delivering the motion to the clerk’s office on Thursday, October 25, or Friday, October 26, the plaintiff mailed the motion to the courthouse, resulting in its arrival in the clerk’s office on Monday, October 29,1990. In addition, the plaintiff did not bring the motion to the attention of the judge presiding over the trial; rather he followed the usual procedure for claiming a motion for short calendar. As a result, the motion for protective order did not come to the attention of the trial judge until the defendant attempted to introduce the deposition testimony at trial. Practice Book § 206 gives the court the discretion to dispose of any motion in a case on trial rather than automatically relegating the matter to the short calendar list.⁵ See Udolph v. West Hartford Spirit Shop, Inc., 20 Conn. App. 733, 736, 570 A.2d 240 (1990) (“[t]he court, in its discretion, could have heard the . . . motion although it was not on the short calendar list”); see also State ex rel. Bonoff v. Evarts, 115 Conn. 98, 100-101, 160 A. 294 (1932) (trial court can accelerate hearing at its discretion).

The defendant also did not attempt to expedite the disposition of the motion for protective order. Upon receiving notice of the motion, the defendant could have contacted the court to request immediate consideration of the motion by the trial judge, or contacted the plaintiff to attempt to resolve the problem. She did neither. Instead she waited to contact the plaintiff on the morning of the scheduled depositions, and proceeded to conduct the depositions even though the plaintiff had told her that neither the plaintiff nor his attorney would attend the depositions until after the motion for protective order had been decided.

Neither party in this case is without responsibility. Other courts also have acknowledged the responsibility of both parties for the orderly conduct of depositions. Where one party scheduled a deposition and canceled it when the other party, who had filed a motion for protective order, did not appear, the court reprimanded both parties. Goodwin v. Boston, 118 F.R.D. 297, 298 (D. Mass. 1988). The court stated that the objecting party should have contacted the other party to arrange a stay until the motion for protective order could be heard or, barring agreement, filed a motion to stay the deposition and alerted the court to the need for immediate action on the motion for a stay. Id. The court also noted that the party seeking the deposition did nothing to alert the court to the need for an immediate decision on the motion for protective order, and did not contact the objecting party before attempting to proceed with the deposition. Id.; see also Cady v. Laws, 341 So. 2d 1022, 1023 (Fla. App. 1977) (“many of the complaints expressed by the [plaintiffs] could be obviated by the exercise of a modicum of professional courtesy between counsel”).

“[W]hat is reasonable notice must depend largely upon the facts and circumstances of each case, and . . . such matters must be left to the wise legal discretion of the trial court.” Harris’s Appeal from Commissioners, 58 Conn. 492, 494-95, 20 A. 617 (1890); accord C & F Packing Co. v. Doskocil Companies, Inc., 126 F.R.D. 662, 678 (N.D. Ill. 1989) (“the most that can be gleaned from the case law is that the reasonableness of notice must be determined under the individual circumstances of each case”); Hogan v. Beckel, 783 S.W.2d 307, 308 (Tex. App. 1989) (“[w]hether notice is reasonable depends on the circumstances of each case”); Rovner v. Rovner, 778 S.W.2d 905, 908 (Tex. App. 1989) (“question of whether reasonable notice has been given is within the discretion of the trial court”). Courts, in Connecticut and in other jurisdictions, consider the proximity in time of the scheduled deposition to the trial date and the length of time during which the identity of the deponent has been known in determining whether the notice is reasonable.

In many cases, the court’s ultimate ruling assigned considerable weight to the objecting party’s filing of a motion for protective order. In Harris’s Appeal from Commissioners, supra, notice that a deposition was scheduled two days later was held reasonable because the deponent was leaving the state for an extended period, and thus would not be available at the time of trial. The objecting party, however, had taken no steps to postpone the deposition. Id.

In Mims v. Central Manufacturers Mutual Ins. Co., 178 F.2d 56 (5th Cir. 1949), the court held that notice served ten days before trial for taking sixteen depositions in ten cities throughout the country on the same day was not reasonable. “There was no real opportunity for a seasonable motion for the protection of the parties . . . .” Id., 59.

The Texas Court of Appeals noted that four days notice was rather short, but concluded that it was not automatically unreasonable where the plaintiff ignored the notice, did not file a motion for protective order and did not attempt to reschedule the deposition. Bohmfalk v. Linwood, 742 S.W.2d 518, 520 (Tex. App. 1987).

In Van Buren v. Dendy, 440 So. 2d 1012 (Ala. 1983), the defendant filed a motion for protective order claiming, inter alia, that “this case has been pending since February of 1982, that the Plaintiff has known at all times that the testimony of these deponents would be critical'in this trial but that Plaintiff has postponed the taking of this critical deposition until five (5) days before the trial of this case.” Id., 1014. The Alabama Supreme Court ruled that the trial court had properly granted the motion for protective order and stated that “[i]t seems clear that [the plaintiff] was aware, during the entire course of the proceedings in this action, that '[the deponent’s] testimony would be critical .to his case and that [the deponent] resided in Chicago, Illinois. This was not a ‘newly discovered’ witness.” Id.

Where the witness is not discovered or located until shortly before trial, the court will construe the notice requirement more liberally. In Federal Aviation Administration v. Landy, 705 F.2d 624 (2d Cir.), cert. denied, 464 U.S. 895, 104 S. Ct. 243, 78 L. Ed. 2d 232 (1983), the government gave notice of four working days for the deposition of a witness, located ten days before trial, who would -be unavailable at trial. The court held that this notice was reasonable because the defense coun.sel “neither contacted the government’s attorney . . . nor sought expedited relief from the court . . . but rather mailed a motion returnable eleven days later seeking an order vacating the notice.” Id., 634.

In the case presently before us, however, the defendant was neither attempting to depose witnesses in anticipation of trial nor seeking to depose a newly discovered witness. The trial had begun on July '5, 1990, and had been continued to July 24, September 14, and finally, November 9, 1990. The defendant was aware throughout the entire trial period that she wanted to include the testimony of her treating physician and psychotherapists. In anticipation of the fact that they might be unavailable at the time their testimony was required, she could have deposed them at any time during that four month period. The situation here is more egregious than that in Van Buren v. Dendy, supra, where the plaintiff delayed the deposition until a few days before trial. Here, the defendant waited until after the plaintiff had completed presenting his evidence before giving notice of the depositions.⁶

The trial court ruled that the notice given for these depositions was unreasonable because the notice did not provide the plaintiff with sufficient opportunity to have his motion for protective order heard. The court further ruled that the plaintiff had been prejudiced by not being able to cross-examine the deponents. For these reasons, the trial court did not allow the depositions to be introduced into evidence. See Mims v. Central Manufacturers Mutual Ins. Co., supra, 59 (under Federal Rules of Civil Procedure, “reasonable notice” includes an opportunity to obtain a “seasonable motion for the protection of the parties”); Spangler v. Southeastern Greyhound Lines, 10 F.R.D. 591 (E.D. Tenn. 1950) (closeness in time of taking depositions to trial date should be considererd in deciding reasonableness of notice).

The admissibility of a deposition into evidence under Practice Book § 248 is “permissive in nature, leaving the ultimate determination to the trial judge.” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 565, 525 A.2d 954 (1987). “On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference .... [and] will be disturbed only upon a showing of clear abuse of discretion. . . . The party making the claim of error has the burden of showing that the court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) Id., 565-66.

The trial court considered the actions of the parties when exercising its discretion and determined that, under the facts of this case, the mere filing of a motion for protective order made the notice not reasonable and provided a sufficient basis to exclude the deposition testimony. In these circumstances, the Appellate Court appropriately concluded that the trial court had not abused its discretion in denying the admissibility of the deposition testimony into evidence.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., and Norcott, J., concurred.

1 The defendant’s petition for certification, filed pursuant to Practice Book § 4126, was granted by the Supreme Court. Cahn v. Cahn, 221 Conn. 924, 608 A.2d 688 (1992).

2 We adopt the factual recitation set out in the Appellate Court opinion, Cahn v. Cahn, 26 Conn. App. 720, 603 A.2d 759 (1992), and include here only those facts necessary to place the issue before us in context and to resolve it.

3 In Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 142-43, 470 A.2d 246 (1984), we upheld the granting of the defendant’s motion to dismiss the plaintiffs action after the plaintiff refused to respond to the defendant’s deposition questions and never indicated any willingness to answer those questions at any time prior to the entry of the judgment of dismissal.

4 The defendant also challenges the merits of the motion for protective order. Whether the court would have granted the motion for protective order is not properly before this court and we do not consider that issue.

5 Practice Book § 206 provides in relevant part: “Unless otherwise provided in these rules or ordered by the court ... all motions . . . must be placed on the short calendar list. No motions will be heard which are not on said list and ought to have been placed thereon; provided that any motion in a case on trial . . . may be disposed of by the court at its discretion, or ordered upon the short calendar list on terms, or otherwise.”

6 Throughout the trial the defendant had attempted to delay and disrupt the orderly court proceedings. The trial court noted several examples in its memorandum of decision. The trial had been scheduled in February, 1990. The parties were notified in May, 1990, that the trial was scheduled for July 5 and 6,1990. As set out in the memorandum of decision, “before taking the bench [on July 5,1990], a sheriff came in and handed the court a letter dated July 3,1990, addressed to this Judicial District’s Administrative Judge from the Nassau County District Attorney’s Office saying that it was, at the recent request of Mrs. Cahn, reopening its investigation into a possible criminal action against Mrs. Cahn on the charge of bigamy, an affirmation dated June 28, 1990 (whatever that is), from defendant’s New York attorney attempting to stop the Connecticut trial, and a letter . . . from the defendant requesting the Connecticut case be dismissed and referred to the New York courts. . . .

“After the opening of court, the court saw only two persons at one counsel table and several persons in the audience area. The plaintiff’s attorney said he was ready to proceed. The court stated it had reviewed the pleadings and noted the answer filed by Mrs. Cahn as well as her pro se appearance. Based upon her appearance, answer and the long lead time given to prepare for trial on a specific day, the court, having jurisdiction, would proceed.

“At that moment, a gentleman stepped from the audience area into counsel’s space. He introduced himself as the Connecticut attorney for Mrs. Cahn. He handed in an appearance. It should be noted that the attorney’s appearance bears a typewritten date of June 22, 1990, but [was] not filed until presented in court on July 5, 1990.”

In addition, the defendant was responsible for the lengthy continuances from July 6,1990, to July 24,1990, then to September 14,1990, and finally to November 9, 1990.